EW Blanch Pty Ltd & Anor v Cooper & Anor [2005] NSWCA 217

New South Wales Court of Appeal

CITATION: EW Blanch Pty Ltd & Anor v Cooper & Anor [2005] NSWCA 217

HEARING DATE(S): 6 & 7 June 2005

JUDGMENT DATE: 26 August 2005

JUDGMENT OF: Giles JA at 1; Bryson JA at 132; Brownie AJA at 133

DECISION: Appeal dismissed with costs. Liberty to apply within fourteen days for different order(s) in consequence of the entitlement to nominal damages.

CATCHWORDS: Share sale agreement - company conducted insurance broking business - principally CTP and TPPD cover for taxi operators - cover mostly placed with particular underwriter - purchaser aware underwriter said would no longer deal with broker - underwriter then entered into agency agreement with broker - vendor told purchaser that relationship with underwriter "back on track" - purchase went ahead - underwriter complained broker not accounting for premiums in timely manner - terminated agency agreement - brokerage income dried up - business collapsed - WHETHER misleading or deceptive conduct in telling purchaser relationship back on track - on facts, no - WHETHER under terms of sale agreement providing for adjustment in price according to brokerage income purchaser entitled to payment of money - adjustment terms provided for preparation of Specified Accounts and adjustment according to the Specified Accounts - Specified Accounts not prepared - on construction of sale agreement, no entitlement to payment - WHETHER breaches of warranties in sale agreement as to capacity to account for premiums as required by agency agreement - construction of agency agreement - no breach - WHETHER breach of warranty in sale agreement as to unusual or onerous provision - time for accounting for premiums unusual - but breach in that respect not shown to have caused loss - entitlement to nominal damages only. D